Barnett v. City of Chicago

• Decision Date: 06 May 1998
• Docket Number: Nos. 97-2792,97-2793,s. 97-2792
• Citation: 141 F.3d 699
• Parties: Richard BARNETT, personally and as class representative, and Mary Bonilla, personally and as class representative, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees, and Carole Bialczak, et al., Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 699

141 F.3d 699

Richard BARNETT, personally and as class representative, and Mary Bonilla, personally and as class representative, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees and Carole Bialczak, et al., Intervening Defendants-Appellees.

Nos. 97-2792, 97-2793.

United States Court of Appeals Seventh Circuit.

Argued Feb. 18, 1998.

Decided April 1, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied May 6, 1998. ^*

Judson H. Miner (argued), Jeffrey I. Cummings, Miner, Barnhill & Galland, R. Eugene Pincham, P. Scott Neville, Jr., Howse, Howse, Neville & Gray, Jonathan A. Rothstein, Gessler, Hughes & Socol, Chicago, IL, Jaqueline A. Berrien, NAACP Legal Defense and Education Fund, New York City, for Plaintiffs-Appellants in No. 97-2792.

Bridget Arimond, Maria G. Valdez (argued), Mexican American Legal Defense, Chicago, IL, for Plaintiffs-Appellants in No. 97-2793.

James M. Scanlon, Rieff & Scanlon, for Board of Election Commissioners of the City of Chicago in No. 97-2792.

James M. Scanlon, Rieff & Scanlon, Chicago, IL, for Michael J. Hamblet in No. 97-2793.

Kelly R. Welsh, Office of the Corporation Counsel, Lawrence Rosenthal, Benna R. Solomon (argued), Andrew S. Mine, Julian Henriques, Susan S. Sher, Patricia T. Bergeson Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago in No. 97-2792.

Lawrence Rosenthal, Benna R. Solomon (argued), Andrew S. Mine, Julian Henriques, Susan S. Sher, Patricia T. Bergeson, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago and Board of Election Commissioners of the City of Chicago in No. 97-2793.

Kelly R. Welsh, Office of the Corporation Counsel, Andrew S. Mine, Susan S. Sher, for Richard M. Daley in No. 97-2792.

Jerold S. Solovy, Joel T. Pelz (argued), Jenner & Block, Chicago, IL, Donald Hubert, Donald Hubert & Assocs., Chicago, IL, for Carole Bialczak, Thomas Murphy, Luis Gutierrez, Patrick Huels and James Laski in Nos. 97-2792 and 97-2793.

Before POSNER, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

POSNER, Chief Judge.

After the 1990 decennial census, the City of Chicago was required by Illinois law to redistrict its 50 aldermanic wards in order to adjust to population shifts since the last census. The City Council was unable to agree on a new ward map, so alternative maps were submitted to the electorate in a referendum held in 1992. The winning map was promptly challenged in separate suits by representatives of black and Latino (Hispanic) voters. The district judge dismissed the blacks' suit on the pleadings shortly after it was filed. We reversed, Barnett v. Daley, 32 F.3d 1196 (7th Cir.1994), and the case was later tried along with the Latinos' case, which we had suggested be consolidated with it. The trial took 48 days, and it was almost a year before the district judge rendered his decision, upholding the City's ward map. 969 F.Supp. 1359 (N.D.Ill.1997). Both sets of plaintiffs have appealed. The only issue they raise is whether the City's map violates section 2 of the Voting Rights Act, which provides relief to minority groups, such as blacks and Latinos, that "have less opportunity than other members of the electorate ... to elect representatives of their choice." 42 U.S.C. § 1973(b). The first aldermanic elections based on the new map were held in 1995, and the next aldermanic elections will be held next year.

If a districting plan drew district lines in such a way that one group, even though it had a substantial fraction of the total electorate (say 49 percent), was a minority in every district, and if in addition the majority group adamantly refused to vote for any candidate that belonged to or was supported by the minority group--which in turn wanted to be represented only by one of its members--then the members of the minority would have no "opportunity ... to elect representatives of their choice" even though they constituted almost half the electorate. From such a diabolical plan the inference of intentional discrimination would be overwhelming, and so the plan would violate the equal protection clause of the Fourteenth Amendment as well as section 2 of the Voting Rights Act. The Act, however, unlike the constitutional provision, does not require any showing of intentional discrimination, Milwaukee Branch of NAACP v. Thompson, 116 F.3d 1194, 1199 (7th Cir.1997); Barnett v. Daley, supra, 32 F.3d at 1201; NAACP v. City of Niagara Falls, 65 F.3d 1002, 1006 (2d Cir.1995), and by the same token is not limited to impairments of minority voting power so egregious as to compel an inference of such discrimination.

The plaintiffs have abandoned their effort to prove intentional discrimination, and with that out of the picture the question becomes, much as in a case of disparate impact under Title VII of the Civil Rights Act of 1964, whether the challenged districting plan impairs the voting power of minorities more than it has to. That depends on the alternatives. Sometimes there won't be any nondiscriminatory alternative. Imagine a minority group that accounted for less than 1 percent of Chicago's population and was scattered evenly throughout the City. Unless more populous segments of the community were allied with or otherwise supportive of this minority, it would be helpless to elect representatives of its choice to the City Council. Yet there would be no violation of the Voting Rights Act, because it would be infeasible to devise a plan that was more favorable to this minority group. Expanding the Council to 1,000 members, or to 100 and shifting to at-large elections for alderman, perhaps combined with a system of proportional representation, might do the trick. But it would be the kind of radical remedy that the Act does not require, since the protection of minorities is not the sole factor to be considered in a decision on districting.

The plaintiff is not required to propose an alternative map that is "final" in the "final offer" arbitration sense, where the parties cannot modify their offers once they have denominated them final and the tribunal is confined to choosing which of the final offers is better and cannot formulate its own, best remedy. But the plaintiff must show that there is a feasible alternative to the defendant's map, an alternative that does a better job of balancing the relevant factors, although the fine-tuning of the alternative can be left to the remedial stage of the litigation. Sanchez v. Colorado, 97 F.3d 1303, 1314-15 (10th Cir.1996); Nipper v. Smith, 39 F.3d 1494, 1533 (11th Cir.1994) (en banc).

Section 2 unfortunately provides no guidance on how to balance the factors and thus determine whether a challenged plan needlessly impairs a minority group's voting power. The statute tells the courts to consider "the totality of circumstances," and that has turned out to be, if anything, worse than useless advice, as it has discouraged the Supreme Court from trying to particularize the standard. Johnson v. De Grandy, 512 U.S. 997, 1017-21, 114 S.Ct. 2647, 2659-62, 129 L.Ed.2d 775 (1994). All that is clear under the statute and caselaw at present is that if voting is "polarized," in the sense that members of various racial or ethnic groups have a strong preference for a candidate that belongs to their group, and if it would be possible to reconfigure a districting map so as to give one of the minority groups one or more districts (in addition to what the map gives it, if the map gives it anything) in which the group would be a majority, then a more searching inquiry into whether the challenged map denies a minority group a fair opportunity to elect the candidates that its members prefer becomes necessary. Id. at 1011-13, 114 S.Ct. at 2657-58; Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2d 25 (1986); Clark v. Calhoun County, 88 F.3d 1393, 1395-96 (5th Cir.1996); NAACP v. City of Niagara Falls, supra, 65 F.3d at 1007; Little Rock School District v. Pulaski County Special School District, # 1, 56 F.3d 904, 911-12 (8th Cir.1995). It is not even certain whether in making the threshold inquiry the court should use total population, voting-age population, or voting-age population of citizens only. The issue was expressly left open in Johnson v. De Grandy, supra, 512 U.S. at 1008-09, 114 S.Ct. at 2655-56. A larger fraction of both the black and the Latino populations of Chicago is under voting age than of the white population. The question of citizenship is also important in this case, because more than 40 percent of the Latinos in Chicago are not U.S. citizens.

Voting for alderman in Chicago is polarized. Blacks are almost never elected alderman in wards that do not contain a black voting-age majority and Latinos are almost never elected in wards that do not contain a Latino majority of citizens of voting age. Conversely, whites are rarely elected in wards in which either blacks or Latinos have an electorally effective majority. The implication is that unless the ward map is drawn in such a way that blacks and Latinos are concentrated (but not too concentrated, for any minority votes not needed to elect the minority candidate in the ward of concentration would be "wasted" from the standpoint of enabling the members of the minority group to elect candidates of their choice) rather than spread out, they will not be able to elect aldermen of their choice--their choice being aldermen of their own race or ethnicity. How concentrated these groups must be in order to constitute an effective majority in the sense just indicated depends on voting-related characteristics of the population, notably age, citizenship, registration, and turnout. Because blacks have a younger age distribution than whites, and a smaller percentage of eligible blacks are registered to vote than of eligible whites, it is a rule of thumb that blacks must be at least 65 percent of the total population of a district in...